Category Archives: s. 149

Magill v The Queen [2013] VSCA 259 (20 September 2013)

CRIMINAL LAW – Rape and supplying a drug of dependence to a child – Crown alleged text message contained an admission of guilt – Whether trial judge failed to properly direct the jury about how text message evidence could be used – Whether conviction was inevitable absent a Burns direction – Appeal against conviction on both charges allowed – Retrial ordered.

Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 (29 September 2011)

7 Senior Counsel for Balaji submitted that none of this matters because the correspondence is admissible pursuant to s 69(2) of the Evidence Act 1995 (Cth) (the Evidence Act) and that no submission has been made on behalf of Traxys that it should be excluded on some discretionary basis (eg pursuant to s 135 of the Evidence Act).
8 I am entitled to look at the documents in Annexure “VA1”in order to decide whether or not they should be admitted pursuant to s 69 of the Evidence Act. It seems to me that the documents do meet the requirements of subs (2) of s 69. I say this because, on their face, they appear to be documents maintained by Balaji as part of its ordinary business records (see s 183 of the Evidence Act) and, insofar as those letters generated by Balaji itself are concerned, appear to have been generated by a person with the requisite knowledge. The same may be said of the letters emanating from Concast.
9 For these reasons, I propose to admit the correspondence comprised in Annexure “VA1” to Mr Agarwal’s first affidavit. In so doing I say nothing about the weight that will be given to those documents when I come to consider the substantive decision or decisions which I have to make in the present litigation.

12 It is incumbent upon the party tendering a document which is said to constitute a binding contract such as the Share Sale Agreement to authenticate its execution by calling a witness who can testify as to that matter or by otherwise satisfying the Court that the document was executed as it appears to have been. In the present case, I am not satisfied that Balaji has discharged that proof. The correct approach to a matter such as this was discussed by Nicholas J in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) (2011) 280 ALR 97 at [63]–[87], particularly at [78]–[80]. As Bryson J said in National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 at [17] (p 312), at its simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made. Proof of authenticity in this sense means proof that the relevant document is what it purports to be. Section 149 of the Evidence Act ameliorates the position as far as the evidence of attesting witnesses is concerned but does not otherwise affect these basic propositions.

25 Senior Counsel for Balaji submits, however, that the document is admissible because s 150 of the Evidence Act makes it admissible. In addition, Senior Counsel for Balaji submits that I should revisit the previous ruling which I made rejecting the alleged Agreement (Ruling 4) for the same reason, that is to say, that s 150 of the Evidence Act makes the document admissible. …

27 In Pt 1 of the Dictionary in the Evidence Act, “seal” is defined as including a stamp. Annexure “VA2A” has the seal of a notary from Calcutta affixed to it. Initially, Senior Counsel for Balaji relied upon that fact as assisting the admissibility of the document but, upon more mature reflection, accepted that that circumstance did not take the matter as far as he needed to take it.
28 The critical submission ultimately made was that the document has affixed to pages 1, 2 and 3 a stamp which appears to be either the Common Seal of Balaji or at least a stamp containing the name of Balaji and that, at the point where the document required execution, the following appeared:

29 It is apparent, therefore, that there is a stamp (not the same stamp as appears on pages 1, 2 and 3 of the document but, nonetheless, a stamp) at the point where the document was required to be executed by Balaji, together with the signature of Mr Sharma as its Director. It appears, therefore, that there was an imprint of a seal of Balaji on the document, which is Annexure “VA2A” to the second affidavit. It also appears that Balaji is a body corporate established by a law of a foreign country (namely, India).
30 It, therefore, appears that the presumption raised by s 150(1) of the Evidence Act is raised in the present case. That presumption is a presumption to the effect that the imprint is the imprint of the corporate seal and that the document was duly sealed as it purports to have been sealed.